October 23, 1969.—
Dissenting
I dissent because I believe that my colleagues should have searched a little harder — a little longer — for the *12testator’s intent,* and, furthermore, any lingering doubt as to his meaning is removed by application of the Act of 1923.
Bearing in mind that our never ceasing duty is to ascertain testator’s intent, which is the pole star of construction, I am convinced after examination of this will from all four corners that testator used surviving in the sense of outliving the life tenant. “ The question in expounding a will is not what the testator meant, but what is the meaning of his words.’ But by this it was never intended to say that the testator’s *13meaning when apparent can be disregarded, but, that it cannot be got at aliunde, by what he might have meant, or even what under the circumstances perhaps he would have meant, but only by what he said. The search is confined to his language, but its object is still his meaning”: Woelpper’s Appeal, 126 Pa. 562, 572. We are not to be blinded by canons of construction nor to apply them “until all reasonable effort to deduce a meaning from the writing itself has been exhausted with no understandable and sensible result”: Buzby Estate, 386 Pa. 1, 8. We have been warned by our former colleague, the late Mr. Justice Ladner, that “the danger of such rules of construction is their tendency in the progress of time to become inflexible and in their application to circumstances where there is neither reason nor necessity until finally they become controlling”: Earle Estate, 369 Pa. 52, 59.
Every orphans’ court judge knows that the use of the word “surviving” by countless testators over past centuries has invariably resulted in legal contests whenever the scrivener has failed to nail down the “whom” whose death is to determine the remainder-men. In the leading case of Ross v. Drake, 37 Pa. 373 (1860), our Pennsylvania Supreme Court refused to follow the English landmark case of Cripps v. Wolcott, 4 Mad. 11 (1819), which held “there being no special intent to be found in the Will, the terms of Survivorship are to be referred to the death of the” life tenant. The contrary Pennsylvania rule is that in the absence of controlling evidence of a different intention, reference is to the death of testator.
In the experience of the late Judge Gest, who was renowned as an Orphans’ Court constructionist, the proper interpretation of survivor, when not clearly indicated by the testator, “is always debatable”: Craig’s Estate, 24 Dist. R. 851, 853. And the learned jurist reminded us in the same opinion (p. 854) that *14we should keep in mind the two reasons on which the Pennsylvania canon is founded — “first, that in the majority of cases it avoids the disherison of issue of the first takers, and thus effectuates what in general may be presumed to be the testator’s intention; and, secondly, in some cases it avoids intestacy.” A majority of this court agreed with Judge Gest “that neither of these reasons [had] any place” in the situation as it existed in Craig Estate, and I believe the same is true here. Certainly the scrivener of this will, whether layman or lawyer — and it does not matter which — was not familiar with the Pennsylvania rule, and did not use “surviving” in its technical sense: Shaffer’s Estate, 262 Pa. 15, 19.
In item second of his will of April 14, 1925, Augustus Jessup exercised the power of appointment reserved under his own deed of marriage settlement dated June 10, 1890. He gave the residue to his trustees to divide into 30 equal shares, 10 of which were for benefit of his oldest son, Alfred, the remaining 20 shares in lots of five shares for each of his other three named children and his third wife, Jenny. Then “In Trust, upon the death of each child, to assign, transfer, pay over and divide the principal of such share to and among his or her children, or the issue of deceased children, share and share alike, per stirpes, upon the principle of representation: In Trust, upon the death of any child without leaving children or issue him or her surviving, to divide the share of the child so dying among the other hereinbefore mentioned beneficiaries under this my Will in the same proportion as each share bears to the whole, less the share of the child so dying, and to hold the same under the same uses, trusts, contingencies and remainders hereinabove set forth:
“And for my wife, in Trust for her life, and likewise for any ligitimate [sic] issues of my present mar*15riage, who may attain to twenty-one years of age and obtain a vested interest, And failing either of these contingencies the said share shall be equally divided between the hereinbefore mentioned and surviving beneficiaries under this my Will.”
It is crystal clear that the gifts for his four named children were of the income only for their respective lives, the principal to their living children or issue. It is equally clear that if upon the death of any child there was a definite failure of issue, the estate of the deceased child was not to share in the income from that share which was to be divided and held in trust “among the other hereinbefore mentioned beneficiaries under this my will in the same proportion as each share bears to the whole, less the share of the child so dying,” e.g., Albert’s share would go five-twentieths to each of the others, and so on. Testator’s intention of keeping principal within his blood line is evident, whether a child should die with or without issue, and to further this purpose his scheme to postpone vesting to living grandchildren or their issue only, is apparent.
In his gift of the remainder upon the death of a named child without issue, testator makes the award to the “other hereinbefore mentioned beneficiaries.” By this expression he has included not only his wife and children (who were specifically named earlier in this paragraph) but also all possible remaindermen who are to take when a child dies with issue. As stated in the preceding sentence, the gift in such latter event is to “his or her children, or the issue of deceased children, share and share alike, per stirpes, upon the principle of representation.”
Had testator said “hereinbefore named beneficiaries” his reference would be limited to those specifically identified by name, viz., his four children and his wife. But “mentioned” is a broader term and the word *16includes, in addition to named persons, all those referred to and identified as a group or class without attempting to name the individual members.
Augustus Jessup used the word “surviving” in three places. His first use in the first paragraph of item “Second”, as quoted above, makes clear reference to the death of his children and descent of their interest upon failure of issue, i.e., “upon the death of any child without leaving children or issue him or her surviving . . .” Unmistakably the situation as it exists upon the death of a child, not the death of the testator himself, is meant. Where contingency is expressed so clearly and unequivocally we need not concern ourselves with a possible intestacy. Faced with the same question in Woelpper’s Appeal, supra, Mr. Justice Mitchell answered (p. 571) that “where the rest of the fee is, whether in nubibus, or in gremio legis, as the early lawyers called it, or in reversion in the heirs of the testator, as Fearne maintains (2 Sharswood’s Blackstone, 107 n.), is not a practical question which we need discuss here.”
Again testator makes use of “surviving” in item “Seventh” which reads as follows:
“SEVENTH — I desire that any of my children shall possess the right of willing his or her share above mentioned during their lifetime to their wife or husband for life whether they predecease me or not. With the exception of my eldest son Alfred C. Jessup who in the event of his dying childless shall only leave half the life interest on his major share to his wife the other half to be divided equally between the surviving beneficiaries under this my will in the event of his having no child or children who live to take a vested interest. Only the children of my children who shall attain the age of 21 years and take a vested interest shall be eligible to the benefits of this my will provided *17this in no way runs contrary to the Statute of Limitations.”
By use of capitals and periods, item Seventh is divided into three sentences. The second sentence is actually a dependent clause of the first sentence, however, because it depends on the first to complete its meaning and is incomplete without it. Thus read, it becomes apparent that item Seventh refers to distribution of testator’s marriage settlement property as well as his “own personal estate.” * “Surviving beneficiaries under this my will” and “the benefits of this my will,” confirm this meaning. Counsel for the estates of the two sons concede that this modifies the scheme of distribution in item Second but only as a “temporary exception.” Closer analysis must determine that the permissive grant of a life estate to a surviving spouse whether a child “predecease me or not” is a definite and permanent alteration of the dispositions in both items Second and Fifth. The power to will a life estate to a surviving spouse in either event, and whether or not the legatee was survived by children, is strong evidence that testator did not look upon survivorship as predetermined by rule of law or as merely automatic. The second clause limiting Alfred’s power to so direct one half and bequeathing the other one half to “the surviving beneficiaries” in the event none of Alfred’s children reached age twenty-one must mean beneficiaries surviving Alfred. If read as “surviving” testator, Alfred’s estate would take even though he died after testator without children or widow to whom distribution could be made as expressly authorized by testator, and thus Alfred’s share could be directed outside the blood line which is at variance with testator’s *18wishes as expressed elsewhere in item Second and here.
So also the requirement that vesting in “children of my children” must be postponed until age 21, refutes any possible thought that testator contemplated vesting as occurring immediately upon, and as early as, his own death.
Coming now to testator s third use of “surviving” which gives rise to the present controversy, we gather convincing evidence as to testator’s intended use from the meaning which he has given the word in the other two places.* “Hereinbefore mentioned and surviving beneficiaries” as used in the last paragraph of item Second inevitably means the beneficiaries mentioned in the preceding paragraph of the will zuho survived the widow. Any other construction would be in such striking contrast to testator’s use of the word elsewhere that we are rhetorically repelled by any such interpretation. Testator having clearly and conclusively established a preference for descent along blood lines for his children’s trusts has schematically continued such dispositive preference for the remainder of his wife’s trust in the event she should die without issue living to obtain a vested interest. Testator has expressed his intention as to his wife’s trust in a condensation or sort of shorthand of what he has spelled out at length in his preceding paragraph. His use of “likewise” sets up a trust for any issue that might be born to him by his wife Jennie. Such issue would obtain a vested interest upon reaching age 21 and would then receive principal. In the absence of any such issue, or upon failure of such issue to reach age 21, he imposes no additional trust *19upon the principal but directs its equal division between the beneficiaries mentioned in the preceding paragraph who should survive his widow. Testator’s omission of any continuation of the trust as in the preceding paragraph is intentional, lucid and perspicuous. His omission of any express exclusion of his wife’s estate from participating in the principal, but relying instead on “surviving beneficiaries” in lieu of the longer phraseology is also understandable.
The intent and purpose of Augustus Jessup as clearly expressed in detail in the first quoted paragraph of item Second and in item Seventh must carry over as to his wife’s trust in the absence of some convincing evidence that he did not so intend. Faced with the identical problem, and construing language even less explicit, in Dinkey Estate, 403 Pa. 179, 183, our Supreme Court reasoned that “we cannot read or consider the first dispositive clause or provision in the third paragraph without reading and considering it in connection with and together with the second dispositive clause or provision of the third paragraph. Considering the two together, the testator’s intention is, we repeat, clear that Alva, Jr. could take one-third of the principal of the trust only if he survived testator’s widow.”
I agree with the learned auditing judge that it would be “anomalous” for the widow’s estate to receive a share of her trust principal. I do not see how my brethren can logically exclude her, however, and at the same time include the estates of the two sons who, like her, survived testator. The majority opinion avoids this issue by refusing comment.
There is another and no less compelling reason for referring survivorship to the death of the widow. By the Act of June 29, 1923, P. L. 914, it was provided that in interpreting the wills of persons dying after December 31, 1923, where property is left in trust, for *20use of any person for life with a vesting of the remainder upon termination of the life estate, in the testator’s heirs, next of kin, children,* etc., i.e., “the persons thereunto entitled under the intestate laws, or other similar or equivalent phrase,” such provision shall be construed as meaning “the persons thereunto entitled at the time of the termination of the estate . . . for life . . . under the intestate laws of the Commonwealth as they shall exist at the time of such termination; and such phrases shall not be construed as meaning the person or persons who were the heirs or next of kin of the donor at the time . . . testator died.” (Italics supplied.)
In Laughlin’s Estate, 336 Pa. 529, 536, our unanimous Supreme Court stated that this act was “a legislative establishment of a statutory presumption, and it is reasonable to believe that this presumption is ‘a conclusion firmly based upon the generally known results of wide human experience’ Love Estate, 362 Pa. 105, 107, repeated the court’s approval of this conclusion. Similarly Jarman in referring to the holding of Sir John Leach in Cripps v. Wolcott which conclusively established the rule in England with regard to personal property, commented “the rule of construction which he propounded, seems to be so reasonable and convenient for general application, that it is not surprising that subsequent Judges have been favorably disposed to its adoption”: 3 Jarman on Wills, 7th ed., 1930, p. 2064.
The above authorities are reason enough to hold that the Act of 1923 should be given a broad, not a narrow, interpretation. As confirmation of this we turn to the Wills Act of April 24, 1947, supra, sec. 14(4), and the comment of the Joint State Government Commission that this clause “is an extension of the Act *21of 1923, P. L. 914, 21 PS §11, to include gifts in remainder to heirs of a person other than the testator. In all such cases it is desirable to have the class determined as of the time the remainder falls in, unless the testator directs otherwise.” (Italics supplied.) This legislation has reversed Pennsylvania case law so that presumptively the remaindermen are to be determined at death of the life tenant instead of testator.
Here testator has used the expression “hereinbefore mentioned and surviving beneficiaries,” which group at the time he wrote his will was composed inclusively of all his heirs and next of kin, and exclusively of all others. The mere fact that he first mentioned his children and wife individually by name cannot dispel the actuality that these persons as a group with “their children or the issue of deceased children” were then, and in the future would comprise, his heirs and next of kin. He has referred to them clearly and without ambiguity by an “equivalent phrase.” We must interpret his language in the light of the circumstances in which he wrote, and the living kin who then surrounded him.
The Pennsylvania legislature did not insist that testator select a synonym for heir or next of kin for they well understood he would not be writing in a vacuum. The written instructions of a testator are “little more than a scrap of paper save as they operate with legal effect on matters extraneous to the will itself. Construction deals with the dynamic rather than the static phase of the instrument. The question is not just what words mean literally but how they are intended to operate practically on the subject-matter”:* City of Marshall v. Gregoire, 193 Minn. 188, 198, 259 N.W. 377, 381.
For the above reasons I dissent from the action of my colleagues in dismissing the exceptions. I would *22return the matter to the learned auditing judge for his further consideration not inconsistent with the views herein expressed. It seems to me on the basis of stipulated fact no. 7 and the family tree, that testator’s grandson, Alexander A. Jessup, obtained a vested interest in his father’s share prior to his death at age 22 years. Such vesting would entitle him to a subsequent cross-remainder: Hope Estate, 398 Pa. 470. Since the record is not explicit as to what notice was given to the personal representative of this grandson’s estate, the matter should be returned for clarification.
At the audit before Judge Bolger, the two living remaindermen sought to establish their father’s testamentary intent through the “armchair method.” To avoid the established case law in Pennsylvania that “surviving” relates to the death of testator rather than the death of the life tenant, they offered proof that (a) the will was drafted by a British solicitor or (b) by their father, a layman, who probably had access to a mass of legal documents — wills, agreements, settlements— from the estate of his father, Alfred Dupont Jessup, who died in 1881. On objection, the learned auditing judge excluded the tendered proof as hearsay.
There is evidence in the record which is well-nigh conclusive, however, that the scrivener was not a Pennsylvania lawyer. First, there is the stipulation that testator’s Pennsylvania counsel, a leading Philadelphia law firm, does not know who prepared the will which was executed by Mr. Jessup in Leghorn, Italy, on April 14, 1925. Secondly, the language of the will itself indicates that it was prepared by someone who was familiar with the special language of English wills, but was certainly not an expert draftsman, e.g., writing “trustees” and “annuities” (items third and fourth) when there was but one trustee and a single annuity, and referring in terrorem (item thirteenth) to a beneficiary’s “disputing” rather than contesting the will. The scrivener also described the rule against perpetuities as “the statute of limitations” (item seventh), which is reminiscent of the language of Fearne writing on “contingent remainders” (10th edition) in 1776, or the early technical meaning of “perpetuity” as “a limitation equivalent to, or in the nature of, an unbarrable entail”: see 1 Jarman on Wills (7th ed. 1930) p. 255.
Testator’s personal estate was insolvent at time of his death six months later, on October 16, 1925.
In Castledon v. Turner, 3 Atkyn’s Rep. 257, the Court of Chancery held that the uncertain and ambiguous use of the personal pronoun “her” was made certain by its unequivocal use in two other places in the will.
“Children” is interpolated by Chief Justice Maxey in Laughlin’s Estate, 336 Pa. 529, at page 536.
The above quotation is a slight paraphrase of the original.